Federalism in Somalia: Disruptive Member States and the Weak Legislative Branch

Wednesday, 10 October, 2018

By Mohamed Omar Hashi

The process of rebuilding Somalia has been placed in serious jeopardy due to both widening political instability and unrelenting confrontations. This state of affairs has been made worse by the weak legislature, which is not only incompetent and insufficient, but also corrupt. The fallout between the federal government and member states in relation to the federal system is another challenge which is often dictated by endless disputes and increasing tensions - derailing post-conflict initiatives. The Lower House of Parliament failed to fulfil their duties, to adequately speak for the citizens and appropriately represent their priorities, needs and issues within the policy and law-making processes. There has been a failure to make laws that govern the nation and exercise oversight, and to ensure that legislation and government policies are implemented effectively, according to the original intent and within the parameters of the rule of law. These two issues, critically reviewed in this article, are a threat to our country’s political stability, security and socio-economic development, as well as the efficient and productive utilisation of resources in the new millennium.

A. Federalism: Disruptive Member States

While Somalia struggles with the final throes of civil war, its leaders view federalism as an effective way to promote both reconciliation and unity and heal divisions. Leaders believe that the introduction of federalism will compensate for the failure to meet modern political, security, economic and strategic demands. Many believe that the introduction of a federalised system can balance out the very real danger of disintegration and the tendency of a unitary government to over-centralise. However, the country’s citizens are less persuaded by this argument, especially given the increasing amount of federal state dissent there is. As well as having concerns about the practicality and feasibility of the system, many have questions about the ability of federalism to provide a workable solution to some of the most basic issues that relate to socio-economic development, political stability and long-term security.

As Somalia continues to try and break free of the paralysing effects of years of internal conflict, hopes for a federal agreement were recently dealt a further blow when the leaders of the federal member states broke off their links with the government. The decision by five of the regional states under federal rule followed a four-day summit in Kismayo, a coastal city in the south of the country. All five leaders pledged to withdraw their cooperation until the central government delivered on promises that had been previously made and showed that it was willing to introduce changes to the way the country’s resources are shared. Following this statement, attempts were made to reconcile the various parties by the Federal Government, which organised a National Security Council meeting on 24th September 2018. This attempt at resolution failed when the member states ignored the President’s invitation, and in doing so, effectively suspended all communication channels. The states have not been reticent about making their views known publicly in the past, but for many, this act of public defiance may have been a step too far as it will be difficult for the political system to just brush off. Instead of working towards finding a mutually agreeable and peaceful solution, many believe that these member states are becoming part of Somalia’s wider security challenges due to the reckless nature of their conduct.

The member states failed to take their grievance to the upper house, as stipulated in the provisional constitution. The mediation process in place was designed to resolve disagreements between the Centre and the States or fallouts between the Member States themselves. Article 111F sets out the required mechanism, which includes an Interstate Commission, while Article 109C (1) (d) specifies that the Constitutional Court has responsibility for making the final judgement to resolve such cases. There is also representation at Federal Government level of the Federal Member States via the Upper House within the Federal Parliament. This is made up of representatives elected from the people in each Federal Member State (see to Article 72). All members of the Upper House within the Federal Parliament have a duty to represent their own Federal Member State and its interests (see to Article 61 (3)). Therefore, the member states’ behaviour, in failing to follow due process, contravenes the provisional constitution that is currently in place and puts them in conflict with the federal system itself.

There is no question that the Federal government is facing huge challenges, which range from mobilising and utilising resources responsibly to economic reform, accountability, transparency, capacity, effectiveness and security reform. The Centre is not renowned for either its speed of response or willingness to embrace radical reform, but every time it begins to take tottering steps towards real progress, the path is blocked by the regional leaders. Increasingly, these leaders are being viewed as people who deliberately try to sabotage the Centre and consider themselves to be beyond reproach. This inevitably results in the Centre returning to the general state of non-action it usually adopts. While some of the blame can squarely be placed at the feet of those who have deliberately set out to block progress, this raises unanswered questions about the future of the Somali federation and how it will be structured.

Federalism is clearly a democratic system because it mitigates the centralisation of power through power-sharing between the Centre and the States. This requires the two parties to unilaterally agree on where the power lies for each issue and who is able to legislate on each area of law. However, power-sharing means something quite different in Somalia, when we think about it at the level of the Union government per se. Federalism has been hijacked by regional parties that are becoming powerful enough in their own right to divert the Centre’s domestic and foreign policy strategy, and are making efforts to do so, by colluding with foreign entities who are keen to disrupt any perceived stability. Power-sharing here is about seeking opportunities, rather than the evolution of a shared consensus on the governance of subjects that fall within the Union List. Due to this rather convoluted approach, it is impossible to consider what the most appropriate levels of federalism might be, as the principles are somewhat undermined by the unorthodox approach to power-sharing.

To what extent should the federal principle inform or determine what goes on? If it is held hostage to the politics of the Member State, then the union government’s capacity to make policies is a fallacy and these policies will be created by the state members instead. However, the fact that these member states are creating obstacles to effective governance is no longer noteworthy as it has become such a regular occurrence. It is more helpful to focus instead on the effect that the state’s politics will be having on the federal system, as this should be about preserving the integrity of the arenas that lie within the Centre’s exclusive purview, rather than just about delegating authority to the states. In effect, by trying to weaken and drain the Centre’s powers, federal movements are damaging their own cause, and the extent to which the union is being undermined is jeopardising the entire federal movement.

B. Weak Legislative Branch

The character and quality of parliamentary democracy depend very much on the elected parliamentarians. Their actions should at all times be a positive reflection of Parliament and all within it. The way in which Parliament is viewed by the constituents is an excellent indicator of how well the democratic process is embedded within the culture, and legislation is a tool that helps to identify a government with democratic ideals. Proper governance requires the inclusion of appropriate good-quality legislation that will both distribute powers and define it's function.

The Somali Parliament is expected to fulfil three main functions:

 To represent citizens, bringing their needs, goals, problems, and concerns to the policymaking process

 To make laws that govern the nation

 To exercise oversight – ensuring that both legislation and government policies are implemented effectively, according to the original intent and within the parameters of the rule of law.

In Somalia, the three key areas described above – namely, representation, legislation and monitoring – are directly influenced by the fact that MPs do not have the necessary education, experience and skills, nor a relevant occupational background. MPs need to have a clear understanding of the work that Parliament carries out, and the ability to communicate this succinctly to others. Apart from lacking the desired level of education, it is the personality and attitude of the MPs that can have a direct impact on how they perform. Other factors that need to be taken into account are a lack of experience or knowledge about how expert governance is delivered and a poor understanding of the role that Parliament and the MPs themselves have in delivering governance.

Various social media platforms and the mainstream press graphically highlight the widespread dissatisfaction there currently is with the achievements and performance of the legislation. A good number of MPs are backbenchers who never say anything or make any contribution to debates, while many others are absentees who are interested only in their own material incentives and allowances. Attendance has been such a problem for Parliament that it has been hard to achieve a quorum. The high number of sessions that have fallen below the required levels for a quorum has meant that a number of agenda topics have not been debated or voted on, which has led to the legislative schedule falling into arrears. Most of the 275 MPs in the house have failed to meet the attendance requirement set out by the constitution, as they have been absent for two or more consecutive sessions. Even though this is now the norm, and they have been unable to give a reasonable explanation for their absence, the Speaker has failed to call for their seats to be declared vacant, as is stipulated in Article 59, Clause D of the provisional constitution. This absence of MPs is a sign of their lack of discipline and sends a wrong message to them that it is acceptable to miss crucial parliamentary proceedings.

A lack of engagement between the MPs and their constituents has also been apparent, with almost every MP failing to make an appearance in their own community. Instead, MPs have continued to show their unabated obsession with wealth acquisition. Patriotism and Somalinimo ideals are just words that are addressed to the public, but the real intentions are hidden behind lobbying and bargaining, which have become an image of the Parliament. Their real intention seems to be bargaining, lobbying and the use of Parliament as a means to acquire authority and pursue personal ambition.

Executives often dominate legislation, creating a fledgling relationship that appears to be neither mutually balanced nor based on trust. The legislature has not utilised the powers provided by the constitution against the executive due to the overarching structure and individuals holding the positions. The role of lawmaker within the House is often willingly sacrificed or compromised by individuals who wish to achieve senior roles within the executive or gain a material advantage. One of the reasons for this is the combination of different models that are fused together, which leads to poor monitoring processes. Legislators often receive money from the executive in order for some of their monitoring and oversight functions to be set aside. This occurs at all levels, including state, federal and local government. Foreign entities with a stake in the

The problem lies with the fact that the legislators betraying the constitution are the very individuals who are entrusted to watch over the executive. As they lack the moral calibre to adhere to the necessary standards, they are unable to perform the desired function. These allegations could easily be substantiated by a swift review of every legislative activity that has taken place throughout Somalia. Other countries have made sustainable, lasting progress by making sure that properly qualified individuals with the right attributes are put into positions of trust, but this has not been the case in Somalia. Instead, political patronage and nepotism are rife in the country. Even very senior and sensitive roles that should be beyond reproach are affected by the corruption.

Electoral sustainability is now under the spotlight as the 2020 election begins to edge closer and there is a tendency to revert to “selectocracy” time and again. This supports the presence of a central state government that has been fragmented and exists only as a token within Mogadishu, and has meant authority in Somalia continues to be challenged in ways that are not seen in other states. For example, allegations of illegal financial incentives and vote buying were made about those who took part in the 2016 selection of parliamentary members. This continued up the chain, with incentives being bestowed by presidential candidates when the elections for the head of state started to draw near. These actions affected the plausibility of the result and red flags should have been raised, but the outcome was accepted nevertheless. One of the most fascinating aspects of this whole process is that none of the participants attempted to hide or minimise their actions; instead, the practices were admitted and shared openly. As a result, it is generally accepted that the monetary aspects of the elections are a major barrier to achieving sustained political legitimacy.

There is also a lack of capacity at an institutional level that prevents Parliament from acting competently. This ranges across a variety of areas, such as weak parliamentary committees, poorly developed rules and a lack of procedures, combined with infrastructure problems. All of these issues, in tandem with a lack of availability of information and insufficient qualified staff to help with the administration, especially to carry out research, mean that the executive is never properly held to account.

Radical reform and modernisation of working practices and a bolstering of both technical and human resources by parliamentary authorities is an essential component of lasting success. The weakness in key roles within Parliament, such as the Parliamentary Secretariat, Speaker and the various positions on committees, illustrates this point. To expand further, there is no function that ensures the Speaker remains neutral and committees lack the power or resources to act meaningfully. These should all be considered critical areas that require particular solutions.

C - Recommendations

Two issues which are disparate, but of equal importance, have been identified within this article that will be instrumental in determining whether Somalia succeeds or fails.

Federal Member States

Federalism is fundamentally neither intrinsically good nor bad, and it is not a panacea that instantly cures all ills. The rise or fall of federalism will depend wholly on the way that politicians choose to implement it. To reach an agreement which is acceptable to all, the member states and the federal government will need to revisit the constitution in order to define the authority of each of the bodies in the constitution. This should include determining the centre and the different states. There must be robust and reliable dispute resolution mechanism in place that can address any questions which may arise.

All of the structures within federalism have powers to manage conflict, challenges and tension. These are defined by their function, purpose and nature. This should create a cooperative atmosphere with each party seeking to share appropriate authority and commit to a consensus that promotes self-rule.

Having dispute resolution procedures that are flexible, honest, responsive and dynamic is critical to the healthy functioning of a federal system. With co-dependency and shared authority in areas, such as resources and power, there must be a commitment to ongoing, regular and intensive communication, where necessary, to drive collaboration and engagement while also reducing tension and conflict. One possible solution would be to establish a council that would manage any political conflicts and resolve any ambiguities which might arise. It can be helpful to use this type of structure to promote collaboration and eliminate tension, even if the decision is not legally binding. Conflicts of interest can respond particularly well to this type of set-up, especially those that relate to laws and decrees where a political consensus is necessary. Taking radical steps to heighten sensitivity around issues, such as severing ties with central government, will only serve to create further conflict and undermine the very core of the federal system.

Legislative Branch

At the very heart of democracy is the legislature; this has always been the case and will continue to be for the foreseeable future. However, like all living things, all of the parts have to be functioning properly for it to be healthy. Weakness in any peripheral area will damage the overall entity, but if the very heart of a democracy is non-functional then everything else will just fall apart.

At present, the legislative body of Somalia is slowly eroding the very core of our federal government. It's a destructive cancer that is corroding the legal system and the Somali identity, whilst also perverting the public’s opinion and mutating the government into a nepotistic creature which is unfit for purpose. With the regulators absent – as they are either unwilling or unable to apply effective sanctions against those who are accused of corruption – it seems there is a clear shortfall in being able to deal with activities of financial crime that involve legislators.

In cases where the contractors in situ are also the legislators, the situation is made more difficult and creates a very real conflict of interest between their public responsibilities and private pursuits. In cases where the parties or organisations that are supposed to be monitored by legislature end up profiting from the legislature, or sponsoring it, the oversight function of the body becomes effectively defunct.

As noted above, the lack of attendance by MPs has been a serious barrier, and yet no expulsions or suspensions have ever taken place to penalise parliamentary absence. Even those who have been persistently absent have never been subjected to any substantive measures. Nevertheless, this lack of attendance is one of the primary reasons why the legislature has now fallen behind schedule and why there have even been questions about whether the house is fit to stand as a true representation of the people. In truth, it is hard to say if the constituents are really being represented when there are so many absences. Constant monitoring of how many MPs are present when the Houses sit is required in order to ensure compliance with the quorum condition, and any absentees that fall below the threshold should be subject to the process that is stipulated in the provisional constitution.

The legislature is the heart of the system (as described in the previous analogy) and as such needs to be beyond scrutiny and perform to its fullest possible capacity. There must always be a defining line that sets private interests apart from public duty. It must construct a public service legacy by drawing on patriotism. To achieve this, it is essential to change the legislative system by calling for a national conference to discuss the new legislative reform that excludes the legislators themselves.

On a final note, there is a need to strengthen both the legislative oversight and monitoring mechanism because, without a competent function in place, not only will corruption continue to flourish, but it may also act as a real catalyst for the end of democratic practice in Somalia, which is something that should be avoided at all costs.

Mohamed Omar Hashi was a Member of the Transitional Federal Parliament of Somalia from 2009 to 2012, and holds an M.A. in International Security Studies from the University Of Leicester.